Robert H. Rotering, appellant,v.Perry Satz, et al., respondents.
2009-02773 (Index No. 1743/08)
Supreme Court, Appellate Division, Second Department, New York.
March 16, 2010
Susan Chana Lask, New York, N.Y., for appellant.
Hiscock & Barclay, LLP, Albany, N.Y. (David B. Cabaniss of counsel), for respondents.
REINALDO E. RIVERA, J.P. JOSEPH COVELLO DANIEL D. ANGIOLILLO JOHN M. LEVENTHAL SHERI S. ROMAN, JJ.
Submitted-December 16, 2009
DECISION & ORDER
In an action to recover damages for legal malpractice, the plaintiff appeals from a judgment of the Supreme Court, Dutchess County (Pagones, J.), dated May 1, 2009, which, upon an order of the same court dated February 23, 2009, inter alia, granting the defendants’ cross motion to compel acceptance of the answer and, sua sponte, directing that the complaint be dismissed pursuant to CPLR 306-b, dismissed the complaint.
ORDERED that the judgment is reversed, on the law, with costs, the complaint is reinstated, and the order dated February 23, 2009, is modified accordingly.
The Supreme Court, sua sponte, directed dismissal of the complaint on the basis, inter alia, that the plaintiff failed to file proof of service of the summons and complaint, citing CPLR 306-b. Pursuant to that statute, a court may only dismiss a complaint for failure to effect timely service of process “upon motion,” not on its own initiative ( see CPLR 306-b). The defendants never moved to dismiss the complaint ( see CPLR 3211[a][8]; [e] ). Thus, the Supreme Court erred in doing so sua sponte ( see Daniels v. King Chicken & Stuff, Inc., 35 AD3d 345).
The plaintiff’s remaining contention is without merit.
RIVERA, J.P., COVELLO, ANGIOLILLO, LEVENTHAL and ROMAN, JJ., concur.
ENTER:
James Edward Pelzer
Clerk of the Court
